When someone close to you dies and leaves you out of their Will, you may be able to contest their Will with a family provision claim, legally referred to as a Family Provision Application (FPA). FPAs are commonly known as “contesting a Will” and provide an avenue for eligible individuals to seek a share of the deceased’s estate.
However, not everyone is eligible to contest a Will in Queensland. The Succession Act 1981 (QLD) outlines specific guidelines around who is eligible to contest a Will.
Every state and territory within Australia has its own laws governing Family Provision Applications, including who is eligible to make a claim. In this article, we will discuss Queensland specific requirements for Family Provision Applications.
In this article, we will look at what a Family Provision Application is and if you are eligible to make one.
What is a Family Provision Claim?
A family provision claim is legally known as a Family Provision Application (FPA). An FPA is a legal application made to the Court by certain family members or dependents who wish to contest or challenge the deceased’s Will.
Typically, the application is filed by someone who has not been included in a Will or feels that the Will does not adequately provide for their needs.
Yolandi Breedt explains Family Provision Applications
Succession Act 1981 (QLD)
In Queensland, an FPA is made possible by the Succession Act 1981 (QLD), but the outcome is guided by previous court decisions and a sensible approach to negotiation.
The Succession Act governs Family Provision Applications and the Court’s Practice Direction provides procedural guidelines for parties to follow. These guidelines have been created to minimise the number of FPA matters going to trial by providing a strict set of steps for the parties to follow. This includes a compulsory mediation before going to trial.
If a matter does progress to trial, the Court will then assesses the claim and has the authority to adjust the distribution of the estate accordingly. This legal process balances the deceased’s intentions with the legitimate needs of certain close family members and dependents.
Who is Eligible to Make a Family Provision Claim in Queensland?
You may be eligible to submit a Family Provision Application in Queensland if you are a:
Spouse
You are considered the deceased’s spouse if you are:
- Married
- De Facto Partners (Living together for a minimum of two years before they died)
- Civil Partners
Child
You are considered the deceased’s child if you are:
- Their biological child
- Adopted
- Stepchild
Dependent
You are considered the deceased’s dependent if they financially supported you and you are:
- Their Parent
- The Parent of a child (a minor) of the deceased
- Under 18 years of age
Can Former Partners Make a Family Provision Claim?
In Queensland, a legally married spouse, even if separated from the testator can make an FPA. It is important to establish that the couple was never legally divorced and that the marriage remained intact at time of the testator’s passing.
Also, in certain circumstances, former spouses are eligible to make a Family Provision Claim even where the parties divorced or formally ended their civil partnership prior to the deceased’s passing.
Timeframe for Making a Family Provision Claim
There are two critical dates to be aware of when making a Family Provision Claim (FPA):
- 6 Months from date of Testator’s death
An applicant must give the estate notice of their intention to make a Family Provision Claim within 6 months of the testator’s passing.
- 9 Months from date of Testator’s death
The FPA must be filed in court within 9 months of the testator’s passing.
Can I Submit a Family Provision Application if There is No Will?
Family Provision Applications can still be made in an estate where there is no valid Will. This situation is known legally as an ‘intestacy’ or an ‘intestate estate’.
Where someone dies without a valid Will, Queensland law provides strict rules around how the estate is to be distributed. These rules establish a priority for family member beneficiaries to inherit set portions of the deceased’s assets according to their relationship to the deceased.
If those beneficiaries are not satisfied with the entitlement they are to receive, they may bring an FPA, in the same way as a dissatisfied beneficiary in a Will.
How Does the Court Decide the Outcome of an FPA?
Negotiation: When disputing a Will, an estate litigation lawyer can help you compile comprehensive and relevant evidence to support your claim. Detailed evidence improves the strength of your FPA and aids the negotiation process.
Trial: If negotiation and mediation fails and the parties end up at trial, the Court uses the evidence to assess the merits of the claim and of any competing claims.
The judge will then decide whether the Family Provision Application is successful and how much (if any) of the estate will be set aside to pay the claim.
The strength of evidence significantly impacts the outcome of every FPA, so thorough preparation is necessary.
Types of Evidence Required to Support a Family Provision Application
- Financial evidence
- Health evidence
- Evidence of Relationship with the Deceased
Yolandi Breedt explains a successful Family Provision Claim
How Long Does a Family Provision Claim Take to Finalise?
Claims resolved by negotiation can settle within a couple of weeks.
However, if a dispute ends up going to trial, it may be months or even years after the application is made before the judge makes an order to finalise the application.
Early resolution by negotiation or mediation helps to mitigate the delays, costs and uncertainties of contested court proceedings.
Who Pays the Cost of the Claim?
The estate often bears the responsibility for all parties’ costs, including the applicant’s. However, if a claim is weak, or if either party refuses to accept a reasonable offer of settlement before trial, the court may order costs to be paid personally. This is another reason why comprehensive legal advice and guidance is critical in FPAs.
Greenhalgh Pickard Solicitors & Accountants offer a No-Win, No-Fee policy when acting for applicants who have good prospects of success in a FPA or to challenge a Will’s validity.
This means that the client does not pay professional fees until we achieve a successful outcome for them.
For more information about making a Family Provision Claim, contact our expert team at Greenhalgh Pickard.
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.
Greenhalgh Pickard’s Wills & Estates Team
